The Chhattisgarh High Court's Division Bench, composed of Justices Goutam Bhaduri and Radhakishan Agrawal, recently made the observation that just because the father is the little son's natural guardian, the custody dispute cannot necessarily be resolved in his favour.

The court also emphasized that in these situations, the kid's welfare comes first and that in order to request custody, parents must feel a genuine relationship with their young child.

"The welfare of the minor is a proposition, which depends on a host of factors. Sufficient means to raise the minor is one of the factors, which governs the issue of the welfare of minors, but that cannot always be the sole determining factor. If the mother or father, who is seeking custody of the minor does not have attachment with the child in a real sense, it will discourage the Court to direct handing over custody to such appellant."

The Court was making a decision regarding an appeal brought by the father of a minor boy under Section 19(1) of the Family Courts Act against the denial of his application for guardianship of his son from the child's maternal grandparents under Section 6 of the Hindu Minority and Guardianship Act.

The Court underlined that the welfare of the kid must be the top priority when appointing or declaring someone as the guardian of a Hindu youngster by a Court. According to Section 17 of the Guardians and Wards Act, the Court must select the guardian who is most appropriate among the competing applicants, even if that person is the one who would have custody of the child under personal law, guided solely by the welfare of the minor.

The Family Court rejected the appellant's request for custody after finding that neither he nor his parents had ever inquired about the child or paid him a visit. As a result, even though the appellant is the child's natural guardian, the court cannot grant him custody of the minor child.

"Thus, it really becomes important that when the appellant had no love and affection for his newly born son, nor any effort was made by him seeking his custody soon after his birth, it does not impress our judicial conscience that the appellant is really interested in the well being of his child."

The court further observed that there was no evidence to suggest that the minor child's safety was in danger or that he was unhappy living with his maternal grandparents. As a result, it was determined that the Family Court's decision to issue its order was appropriate.

The appellant requested visiting rights at this point in order to meet his minor child. The Court held that the appellant had a right to visit his minor child because he was the child's father and natural guardian.

Therefore, the appeal was denied. However, the father was given fortnightly contact rights as well as monthly visitation rights before the Family Court.

Case Title: Prabhat v. XXX & Anr.
citation: FAM 182 of 2018 

Link: https://highcourt.cg.gov.in/hcbspjudgement/judgements_web/FA(M)182_18(20.12.22).pdf